Table of Contents
This Commitment to Action is entered into by the United States Department of Health and Human Services (“HHS”) Office for Civil Rights (“OCR”), and the HHS Centers for Medicare & Medicaid Services (“CMS”).
By signing this Commitment to Action, OCR and CMS agree that this resolves OCR Transaction Numbers 11-123656 and 12-141806, investigations that OCR initiated in response to two complaints filed under Section 504 of the Rehabilitation Act of 1973 and its implementing regulation (Section 504) by the Disability Rights Education & Defense Fund (DREDF) (Complainant) on behalf of two of its clients, both Medicare beneficiaries, and other similarly situated individuals. The complaints alleged that CMS violated Section 504 based on CMS’ failure to provide notice to Medicare beneficiaries of their rights under Section 504 and the failure of CMS Contractors to offer Medicare beneficiaries effective communication via alternate formats. The Complaints further alleged that CMS discriminated against two named individuals on the basis of their disabilities (blindness or low vision) when CMS and its Contractors failed to provide the individuals various Medicare notices and other documents pertaining to their benefits in alternate formats.
OCR initiated the complaint investigation pursuant to its jurisdictional authority under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq., and its implementing regulation, 45 C.F.R. Part 85. Section 504 prohibits discrimination on the basis of disability in any program or activity conducted by HHS. As CMS is the operational division of HHS that administers the Medicare program, it is subject to Section 504.
The purpose of this Commitment to Action is to ensure CMS’ compliance with Section 504 and to resolve the issues raised by these complaints. CMS agrees to take the outlined actions within the timeframes specified. The actions described in this Commitment to Action fully address the issues described in the complaint investigations, OCR Transaction Numbers11-123656 and 12-141806. CMS’ completion of these actions will ensure that CMS is in compliance with Section 504, as it pertains to the issues specifically addressed during these investigations. This Commitment to Action shall become effective on the date it is signed by all parties.
1. Process for Individuals to Request Auxiliary Aids and Services
CMS and OCR have been coordinating in the development of a process for the provision of auxiliary aids and services. By September 30, 2014, CMS shall, in consultation with OCR, implement a process for individuals to request auxiliary aids and services, including requests for alternate formats, and for CMS to respond to these requests by providing appropriate auxiliary aids and services in a timely manner. The process shall permit individuals to request auxiliary aids and services in writing, over the telephone, and by email.
The process shall apply to all requests for auxiliary aids and services relating to communications between CMS staff members and beneficiaries of CMS programs, including all applications, notices, forms, outreach materials, web-based information, telephonic communications, and other communications. Upon receiving a request, CMS shall provide the requested auxiliary aid or service in a timely manner, giving primary consideration to the alternate format preference of the requester, such as an audio recording, on computer CDs, in Braille and large print, and read by qualified readers, among others.
By September 30, 2014, CMS will establish a mailing address, e-mail address and toll-free telephone number for beneficiaries to use when requesting auxiliary aids and appropriately revise all relevant Call Center scripts and webpages, as needed, to include notice of the right to request auxiliary aids or services at no cost and the process for doing so.
2. Notice of Nondiscrimination and Auxiliary Aids
CMS and OCR coordinated on the development of a Notice of Nondiscrimination and Auxiliary Aids. This document states that CMS does not discriminate on the basis of disability and provides the process for filing complaints about disability discrimination, including complaints about requests for auxiliary aids and services, with OCR. This document also provides notice to individuals with disabilities of the right to auxiliary aids and services free of charge. It includes the current contact information that individuals should use for requesting an auxiliary aid or service, including for requesting an alternate format. Currently, this notice is available on the following CMS operated webpages: www.cms.gov; www.medicare.gov; www.medicaid.gov; www.mymedicare.gov; marketplace.cms.gov; and www.healthcare.gov.
CMS shall include this notice in the 2015 Medicare & You Handbook (to be mailed in September of 2014) and all subsequent editions.
Within 60 calendar days of executing the Commitment to Action, CMS will update the current notice in the Medicare & You Handbook to inform beneficiaries of the process for requesting alternate formats of other program related material. The new notice will be included in the next printing cycle for the Handbook.
CMS will review the inventory of documents developed during the 504 Self-Assessment described in Section 3 below, and determine, in consultation with OCR and within 60 calendar days of the completion of the 504 Self-Assessment, other appropriate publications in which to include the Notice and the earliest possible printing schedules. CMS shall include the Notice in the earliest printing cycles for the appropriate publications following this determination. Where the material is too small to contain the complete Notice (postcards, fliers and brochures), CMS will develop, in consultation with OCR and within 60 calendar days of the completion of the 504 Self-Assessment, an appropriate reference to nondiscrimination and auxiliary aids and services. CMS shall include the appropriate reference in the earliest printing cycles for these materials.
3. 504 Self-Assessment
CMS and OCR have coordinated on the development of a Section 504 Self-Assessment, which CMS will use to evaluate the extent to which its programs and activities are accessible to individuals with disabilities.
In compliance with this Commitment to Action, CMS has initiated the performance of the Section 504 Self-Assessment in all of its programs and activities. The results of this Self-Assessment shall be used to develop a Long-Term Action Plan to ensure the timely provision of auxiliary aids and services to all CMS beneficiaries and consumers. If during this assessment process CMS determines that any service, program or activity does not have policies or procedures to ensure effective communication, CMS shall identify both an interim and a permanent modification to ensure effective communication with individuals with disabilities. CMS will complete the Self-Assessment within 90 calendar days of signing this Commitment to Action.
4. Development of Long-Term Action Plan
Within 30 calendar days of completing the Section 504 Self-Assessment of all of its programs and activities, CMS shall convene a cross-component agency workgroup that includes OCR to develop a Long-Term Action Plan for ensuring effective communication with individuals who have hearing, vision, or speech disabilities. CMS shall complete the Long-Term Action Plan within 120 calendar days of convening the work group. The Long-Term Action Plan will address the following issues (a through j, below) as needed and appropriate for each program conducted by CMS. CMS and OCR recognize that each program administered by CMS may need to implement some but not necessarily all of these provisions in order to ensure Section 504 compliance.
- Modification of policies and procedures, as necessary, to ensure the timely and appropriate provision of auxiliary aids and services, including alternate formats, to individuals with disabilities;
- Assessment of and consultation with the individual with a disability to determine an appropriate auxiliary aid and service;
- Redesign and modification of systems and technology, as necessary, to facilitate the timely provision of appropriate auxiliary aids and services, including alternate formats, to individuals with disabilities;
- Dissemination of notice about the policies and procedures to CMS staff and contractors;
- Informing contractors of their legal responsibilities under Section 504 to ensure effective communication with individuals with disabilities in their administration of the CMS program;
- Training CMS staff and staff of contractors on the legal obligation to ensure effective communication with individuals with disabilities in the administration of the CMS program and on the policies and procedures for providing appropriate auxiliary aids and services to individuals with disabilities;
- Revision of contracts with contractors, as necessary, to ensure effective communication with individuals with disabilities;
- Modification of the CMS websites, as necessary, to ensure compliance with Section 508 of the Rehabilitation Act;
- Monitoring of implementation of the revised policies and procedures;
- Other actions, as necessary, to ensure compliance with Section 504.
5. CMS Contractors
Within 60 calendar days of executing this Commitment to Action, CMS shall inform Medicare contractors, Medicare Advantage Plans and Prescription Drug Plans of their Section 504 responsibilities. CMS will ensure that these entities are explicitly aware of their responsibilities to provide alternate formats.
6. Alternate Format Documents for Named Complainant
Within 60 calendar days of signing this Commitment to Action, CMS will provide the complainant named in OCR Transaction No. 12-141806 with his outstanding Medicare Summary Notices (MSNs) in large print (24 point font). CMS will provide all future MSNs in large print (24 point font). CMS has addressed the requests of the named complainant in the second OCR complaint, OCR Transaction No. 11-123656.
7. CMS Response to Existing Requests for Auxiliary Aids and Services
- Within 30 calendar days of executing this Commitment to Action, CMS shall respond in writing to all 25 beneficiaries with outstanding requests for auxiliary aids and services, including requests for documents in alternate formats received through the 1-800-MEDICARE (1-800-633-4227) call center. Such responses shall indicate that the request is under review and that CMS will respond to these requests by providing appropriate auxiliary aids within 60 calendar days (60-90 calendar days for audio requests).
- CMS shall follow up by providing appropriate auxiliary aids and services within 60 calendar days (60-90 calendar days for audio requests) of the date of the initial correspondence to the requesters.
- Within 30 calendar days of executing the Commitment to Action, CMS will update existing scripting provided to 1-800-MEDICARE customer service representatives to ensure that requests for alternate formats are captured appropriately and contact information is collected to allow for timely follow-up.
Marilyn Tavenner Date
Centers for Medicare & Medicaid Services
Jocelyn Samuels Date
HHS Office for Civil Rights